National Australia Bank v. Satchithanantham [2012] NSWSC 1474

Judgment 1The applicant seeks relief by way of notice of motion filed on 29th February 2012 on behalf of himself and three others including his wife, Mrs. Hemalathasothy Satchithanantham. The relief claimed in the first four prayers is difficult to determine due to the unnecessary prolixity of the drafting, and the incorporation of relief sought by reference to other process filed by the applicant and not here reproduced. 2Essentially, however, the relief sought is an attempt to mount a collateral attack on the finality of orders by made by McCallum J in these proceedings on 3rd March 2009. On 2nd September 2009, the Court of Appeal, constituted by Giles, Hodgson, and Young JJA, dismissed an appeal from the judgment and orders pronounced by her Honour. And an application for special leave to appeal to the High Court of Australia was dismissed on 23rd April 2010. Accordingly, the orders made by McCallum J are final and not liable to further challenge. 3Notwithstanding the clarity of this legal position, the applicant has repeatedly sought by various litigious means to continue to agitate his perceived grievances. Comprehensive particulars of the applicant's attempts to achieve his ends, and of the other proceedings in which he has been involved, are set out in the thirteen page schedule to the judgment of Garling J in National Australia Bank v. Satchithanantham [2012] NSWSC 959. Vexatious Proceedings Act 4On 11th September 2012, his Honour made the following orders under s.8 Vexatious Proceedings Act 2008 (NSW) ("the Act") (1) Mr Thambiappah Satchithanantham be, and hereby is, prohibited from instituting proceedings whether by way of final relief, or by interlocutory motion, or application in New South Wales, whether in his own name, or in the name of any other individual, or corporation, or legal entity. (2) Mrs Hemelathasothy Satchithanantham be, and hereby is, prohibited from instituting proceedings whether by way of final relief, or by interlocutory motion, or application in New South Wales, whether in her own name or in the name of any other individual, or corporation or legal entity. (3) Order both Mr Satchithanantham and Mrs Satchithanantham pay the National Australia Bank's costs of the proceedings. 5Garling J's reasons for making these orders are summarised at paragraphs [255]- [262] of his judgment, which I set out as follows: This review of the litigation is conveniently summarised in a Schedule attached to this judgment. The Schedule contains a number of abbreviations of the names of Mr and Mr Satchithanantham. These abbreviations have been necessary in order to accommodate the formatting in the information. No disrespect is intended. Although not all of the litigation referred to in this judgment was addressed by the evidence adduced by the NAB, Mr Satchithanantham, in the course of the hearing of NAB's application, tendered all files of litigation in which he was involved. Although he was not in possession of this material, he submitted that the Court should look at all documents which he had filed in proceedings in which he was involved. I have acted upon this submission. The review of the litigation demonstrates that Mr Satchithanantham has brought proceedings on many, many occasions which were, and have been found, to be an abuse of the process of the court. The proceedings have been brought and pursued without any proper or reasonable ground. The proceedings certainly have caused harassment, annoyance and detriment by way of the incurring of costs to the NAB and other parties involved in the litigation. A simple recital of the proceedings, and a reading of the pleadings and judgments, abundantly demonstrates these conclusions. Whilst I have listed and reviewed all of the litigation in which Mr Satchithanantham has been involved, I am content to rest the orders which I will make entirely on the content of and the proceedings instituted by Mr Satchithanantham against the NAB in this Court, the Court of Appeal, and the High Court of Australia together with the proceedings in the bankruptcy jurisdiction. I am, for the reasons expressed in the course of this judgment, satisfied that both Mr and Mrs Satchithanantham have, in the proceedings referred to in [258], frequently instituted or conducted vexatious proceedings in Australia, and that appropriate orders ought to be made which have the effect of preventing Mr and Mrs Satchithanantham behaving in a similar way in the future. Orders under the VP [Vexatious Proceedings] Act, are in my view necessary, because on a large number of occasions, Mr and Mrs Satchithanantham have shown themselves to be quite unable to: (a) institute proceedings which are properly based; (b) conduct proceedings by putting submissions which are rational, and relate to a proper legal basis for relief; (c) pay any heed to the contents of any judgment which calls attention to, or else highlights deficiencies in their proceedings; and (d) restrain themselves from instituting and conducting proceedings which are an abuse of process. Having regard to these matters, and the public interest, although not an order lightly made, I am well satisfied this order should be made. The Position of the Parties 6When the application was called for hearing before me, Mr. Iaconis, solicitor, who appeared for the respondent, took the point that Mr. Satchithanantham's application (and any other extant, or pending, proceedings) were covered by the orders made by Garling J, and accordingly, Mr. Satchithanantham was restrained from prosecuting it. 7Mr. Satchithanantham responded that Garling J did not pronounce an order under s.8(7)(a) Vexatious Proceedings Act and that he was therefore entitled to press on with the motion. 8Mr. Iaconis joined issue, but alternatively, invoked the "slip rule", Rule 36.7 Uniform Civil Procedure Rules 2005. He argued that it was plain from Garling J's long and careful judgment that his Honour had dealt with the matter in its entirety. He further submitted that if his Honour's orders did not extend to the current application, this could only be an error arising from an accidental slip or omission, and that the Court had power to correct that error. 9The plaintiff was in a position to meet the alternative argument and addressed lengthy argument on the point, arguing [T 9.40]: The same court cannot change the same level of the court position so it's unusual. He maintained that he was entitled to bring the present application. Discussion 10Having heard argument, I though it appropriate to reserve my decision for consideration. In the interim, I ordered that all applications of any kind between the current applicants and the National Australia Bank Limited be stayed until further order. 11The power Garling J exercised to make his orders is conferred by s.8(7) of the Act. That subsection in the following terms: 8 Making of vexatious proceedings order ... (7) Orders that may be made by Supreme CourtThe Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person: (a) an order staying all or part of any proceedings in New South Wales already instituted by the person, (b) an order prohibiting the person from instituting proceedings in New South Wales, (c) any other order that the Court considers appropriate in relation to the person. 12A simple, grammatical reading of the sub-section demonstrates that the orders pronounced by Garling J proceed from paragraph (b) of subsection (7). Further, his Honour was amply empowered under paragraph (a) to stay all or any part of proceedings in New South Wales already instituted by the applicant. 13Rule 36.17 UCPR is in the following terms: If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error. 14Given his Honour's reasons which I have set out above, there can be no doubt that had the omission been drawn to his attention when the orders were pronounced, the correction sought by the respondent would at once have been made: Hatton v. Harris [1892] AC 547 at 558. It would deprive his Honour's findings of a significant part of their operative effect if the applicant was restrained from commencing new proceedings, but perfectly entitled to continue to ventilate any one of the multiple proceedings that have already been commenced, to the extent to which they may still be extant, seeking to improperly impugn the finality of the judgment in the principle proceedings. 15When considering the exercise of the power conferred upon me by Rule 36.17, I am required to give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the dispute or proceedings: s.56 Civil Procedure Act 2005 (NSW). 16In Newmont Yandal Operations Pty Ltd v. J. Aron Corporation & Anor. (2007) 70 NSWLR 411 Spigelman CJ (with whom Santow JA and Handley AJA agreed) at 413 [116] said: By reason of the insertion of the overriding objective into the CivilProcedure Act, words such as "error" and "correct" in the slip rule should not be given a narrow interpretation. In my opinion, carrying into effect the actual intention of the judge making the order, and making sure that the order did not have a consequence which the judge clearly intended to avoid, falls within the natural and ordinary meaning of the word "correction", particularly as understood in the light of the overriding purpose. 17I have no doubt whatsoever that it was the intention of Garling J to put a stop, in accordance with the Act, to the applicant bringing, maintaining and prosecuting applications such as the present which, as I have said, seek to improperly impugn the finality of the judgment made by McCallum J. In my view, the ability of the applicant to bring this present application is a consequence which Garling J by his orders clearly intended to avoid. 18In order to make the position Garling J sought to bring about pellucidly clear, I am of the view that an express order ought to be made under s.8(7)(a) to "correct" the "accidental omission" from the orders pronounced by his Honour. 19The power of correction conferred by Rule 36.17 does not reside solely in the judge who made the order under consideration. In Arnett v. Holloway [1960] VR 22 Adam J at 28 said: ... applications under the slip rule need not be made to the judge who originally pronounced judgment, and the extent of the jurisdiction must be the same by whatever judge it is exercised. The question whether a judgment as recorded has expressed the intention of a Court in giving it's judgment has about it an objective quality which, although no doubt preferably decided by the judge who pronounced the judgment, may be resolved by another judge: it is otherwise if the question is what the judge, responsible for giving judgment, would have done at the trial in circumstances which did not arise. In Regina v.Cripps; Ex parte Muldoon [1984] QB 686 at 695, Sir John Donaldson MR said: The slip rule power is not a power granted to the trial judge as such. It is one of the powers of the court, exercisable by a judge of the court who may or may not be the judge who was in fact the trial judge. His Lordship went on to say that the slip rule also authorises the court to make an order which it failed to make as a result of the accidental omission of counsel to ask for it: see also L. Shaddock & Associates Pty Ltd v. Parramatta City Council (No. 2) (1982) 151 CLR 590 at 594; assuming, without deciding, that this circumstance may be an explanation for the accidental omission which occurred. Decision 20Given that the matter has been listed before me, and the case is a very clear one, having regard to the objectives of the Civil Procedure Act, I consider it appropriate that I deal with the matter, rather than return it to Garling J. Under Rule 36.17 I propose to correct what I regard as an error in his Honour's orders arising from an accidental omission. 21 My orders are: